Rotstein and Associates Pty Ltd v Slaveski

[2014] FCCA 1393

FEDERAL CIRCUIT COURT OF AUSTRALIA

ROTSTEIN & ASSOCIATES PTY LTD v SLAVESKI [2014] FCCA 1393

Catchwords:
BANKRUPTCY – Sequestration order.

Legislation:  
Bankruptcy Act 1966
Family Law Act 1975

Applicant: ROTSTEIN & ASSOCIATES PTY LTD

Respondent: LUPCO SLAVESKI (AS KNOWN AS LJUPCO SLAVESKI)

File Number: MLG 721 of 2013

Judgment of: Judge Riethmuller

Hearing date: 29 May 2014

Date of Last Submission: 29 May 2014

Delivered at: Melbourne

Delivered on: 29 May 2014

REPRESENTATION

Counsel for the Applicant: Mr Rotstein

Solicitors for the Applicant: Rotstein & Associates

Counsel for the Respondent: No Appearance

ORDERS

1. A sequestration order be made against the estate of LJUPCO SLAVESKI.

2. The applicant’s costs be taxed and paid from the estate of the respondent debtor in accordance with the Bankruptcy Act 1966, fixed in the sum of $16,125.00.

AND THE COURT NOTES THAT:

A.The date of the act of bankruptcy is 15 May 2013.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT MELBOURNE

MLG 721 of 2013

ROTSTEIN & ASSOCIATES PTY LTD

Applicant

And

LUPCO SLAVESKI (AS KNOWN AS LJUPCO SLAVESKI)

Respondent

REASONS FOR JUDGMENT

1. This is a creditor’s petition. The bankruptcy notice in this matter was issued on 29 August 2012. The debt involved is in excess of $5000, as required by section 41 of the Bankruptcy Act 1966.  The notice appears to be in order in complying with the various forms and details set out in the provisions. 

2. The bankruptcy notice was served by email in accordance with regulation 16.01 of the Bankruptcy Act 1966.  Having regard to the emails that have been sent and the appearances of the debtor’s wife, there is no doubt that he is well aware of these proceedings and of the bankruptcy notice. 

3. Ultimately, the matter comes back before me on a creditor’s petition.  It was presented on 23 May 2013.

4. The act of bankruptcy occurred on 15 May 2013.  The creditor’s petition appears to be in correct form and supported by appropriate affidavit material.  The affidavits of search and debt and consent by the trustee have been provided today. 

5. The matter was delayed considerably because it appeared that the debtor may not have been of sufficiently sound mind to properly conduct the proceedings on his own without a guardian being appointed.  The matter was delayed while an application was made for the appointment of a guardian at the Victorian Civil and Administrative Tribunal.  I note that this concern as to capacity followed from orders in the Supreme Court in Victoria in previous proceedings allowing him to be represented by his wife on the basis of his capacity. 

6. The Victorian Civil and Administrative Tribunal declined to order that a guardian to be appointed for him, not being satisfied that he could not manage his own affairs.  I find that it is appropriate to proceed with this matter, even though he has not chosen to appoint a solicitor or a guardian. 

7. The debtor’s wife has appeared on a number of previous occasions, however, it is clear that she has an interest adverse to him and the creditors in the sense that they have had a very lengthy marriage and children and a home of which, prima facie, one would expect that she would have at equity (and if not at equity, pursuant to a division under the Family Law Act 1975), a one half or thereabouts interest. 

8. Property proceedings, (I am told by his wife on a previous occasion), have commenced in the Family Court of Australia, which is an appropriate jurisdiction for such proceedings.  It is therefore not appropriate to have her representing the respondent in the bankruptcy proceedings, given that he is not in need of a guardian, and given that she is not a solicitor. 

9. The applicant wishes to proceed today.  The respondent has not appeared in these proceedings when they have been listed before me.  There is no doubt that he is aware of the matter pending today. 

10. The debtor has written to my associate asking for an adjournment.  He does not set out a specific timeline nor any point of defence that he says he may have to the creditor’s position, nor does it seem apparent what the purpose of the adjournment is, other than to delay the matter further. There is no explanation given for why he has not been able to be available today, nor if he did want to attend by electronic communication why arrangements, including an application for that, could not have been made by him before today.  In the circumstances, I am not persuaded that the matter should be adjourned. 

11. I note, though, before I proceed to make formal orders, that on the previous order that I made on 21 May, extending the creditor’s petition to midnight on 29 May, the order on the face of it appears to read 12 am on 29 May rather than 12 pm.  My obvious intent on wording the order was to extend the Petition until after I heard the application today. It is appropriate that that be amended under the slip rule.  I therefore direct that the order of 21 May be amended under the slip rule to correct the “am” to be “pm”.  My reasons for doing that are that it was my clear intention that the creditor’s petition not lapse at least until the close of this day as the matter was listed for hearing on this day.  The face of the order shows a typographical error with respect to am and pm. 

12. With respect to the application for an adjournment, I am not persuaded in this case that the interests of justice would be served by further adjourning the matter.  In the circumstances, I therefore find that the applicant has made out the case for a sequestration order and that it is appropriate to make such an order. 

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Associate: 

Date:  4 July 2014